The City's other weed problem

June 14th 2016

Retired Chicago teacher and environmentalist Kathy Cummings moved into her West Town three-flat in 1999, and began transforming the postage-stamp front yard into the kind of natural landscape she knows is best for the world.

She tore up a privet hedge and some spotty grass, replacing them with wild ginger, sea oats, ferns, violets, sunflowers, and pawpaw trees. She labeled many of the plants and built subtle little borders of intertwined twigs that she'd picked up around the neighborhood. When some milkweed-which, contrary to its name, isn't a weed but a wildflower-migrated in, she was happy to have it. She called her garden "Cummings' Haven," and in 2004 it won first place in the native landscapes category of the Mayor's Landscape Awards Program, sponsored by the Chicago Department of Environment.

Mayor Daley himself presented Cummings with a gleaming plaque that sports a photograph of her yard, and she hung it up in her home office. The next year, she was again recognized, this time with an honorable mention. She says there hasn't been any substantial change in the yard since, though a few years back she added a new sign that makes her intentions clear: Native plants-natural landscapes-toward harmony with nature.

So she was stunned last October 19, when an inspector from the Department of Streets and Sanitation came by, took a look, and issued her a ticket for violating Chicago's weed-control ordinance. The fine was as hefty as the insult: $600.

Cummings, a two-time Green Party candidate, says she took a look at the weed law and became convinced she hadn't violated it. The ordinance specifies that the average height of weeds must not exceed ten inches, but doesn't define what a weed is; a supplementary rule identifies them only as "vegetation that is not managed or maintained" by the property owner. She requested a hearing.

"Usually people just appeal the fine and the guilty finding. We're going beyond that. She's an environmentalist, a Green Party activist, and her garden is a political statement."Civil rights attorney James L. Bowers

On November 29, armed with supportive letters from her neighbors, Cummings told an administrative law judge that she has more than 30 different kinds of plants in her yard, but that none are weeds and all are carefully maintained by her. She says the only evidence presented by the city was the ticket (the inspector wasn't at the hearing) and a few photos of her yard, which the judge perused on his computer screen before declaring, "In my experience, those are weeds," and finding her liable. Besides the $600 fine, she was charged $40 for court costs.

"I couldn't see the pictures on the screen very well," Cummings says, but she asked for a printout, and "when I got a copy, I could see that the plants the judge had been looking at were milkweed."

Cummings could appeal, but filing costs alone would be another $317-enough to convince most people just to give up and pay.

Take, for example, Resource Center founder (and urban recycling pioneer) Ken Dunn, who was also ticketed for violation of the weed ordinance last fall. Dunn, who's had natural plants in the front yard of his Hyde Park home since 1972 ("no watering, no chemicals, no mowing," he says), also requested a hearing.

In his case, says Dunn, the judge fingered a plant in a photograph and said, "That weed is over 18 inches tall." When Dunn replied, "No, that's a native plant, milkweed," the judge declared, "There you go! Weed, over 18 inches tall. Guilty."

Dunn paid the $600 fine, plus court costs. He says another defendant in the courtroom that day was found guilty for having a rosebush.

But Cummings had researched the law with some striking results. Not only was the weed ordinance bafflingly vague, she found, but the penalties for violating it were raised by the City Council twice in 2010, the minimum fine going from $100 to $600, and the maximum from $300 to $1,200. Once that was done, Streets and San started issuing a lot more tickets, many of them in the city's poorest wards. Totals jumped from 5,522 in 2009 to 11,104 in 2012. Ticket revenue went from less than $1 million to nearly $3.7 million, and is on track to continue the upswing: in the first three months of 2013 alone, 3,846 tickets were issued.

Cummings wanted to appeal, but says no lawyer stepped forward to take the case until, out in the yard one day, she mentioned it to the owner of the two-flat next door, civil rights attorney James L. Bowers. On May 9, Bowers filed suit on her behalf against the city, the departments of Streets and Sanitation and Administrative Hearings, and the inspector who issued the ticket.

According to Cummings's four-count complaint, the weeds ordinance is overly broad, the ticket is a violation of her free speech rights, and the "administrative hearing procedures are fundamentally unfair." The suit charges that the ordinance has been applied unreasonably and in violation of equal protection and due process laws "for the purpose of arbitrarily increasing municipal revenue." It seeks reversal of the decision against Cummings, and wants the weed ordinance thrown out as unconstitutional. "Usually people just appeal the fine and the guilty finding," Bowers says. "We're going beyond that. She's an environmentalist, a Green Party activist, and her garden is a political statement. We're raising constitutional issues." (A spokesman from the city's Law Department says, "While we cannot comment on specifics in this lawsuit because it is pending litigation, we can say that the constitutionality of the ordinance has been upheld in the past.")

Besides all that, the suit claims that the ordinance violates a state law setting a maximum municipal fine of $750 for a single offense. And by promoting native vegetation for conservation and then citing it as weeds, the "City in a Garden" is engaging in a "a game of entrapment."

Cummings says a group of concerned people is coming together, in part to review weed legislation from other cities so that a better Chicago law might be proposed. They'll meet at 2 PM on Saturday, June 22, at Saint Mary's Hospital, 1127 N. Oakley. Contact her at [email protected] for more information.

Article written by Deanna Isaccs, for the Chinago Reader online, 3rd June 2013.